TMI Blog2021 (8) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be In the decision of the Supreme Court in ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [ 2019 (9) TMI 802 - SUPREME COURT] while holding that the refund cannot be granted by way of a refund application under Section 27 of the Act until and unless an assessment order is modified and a fresh order of assessment is passed and duty re-determined, the Supreme Court nowhere said that such amendment or modification of an assessment order can only be done in an Appeal under Section 128 - thus, even the Supreme Court clearly indicated that the modification of the assessment order can be either under Section 128 or under other relevant provisions of the Act i.e. Section 149. The stand of the respondents in the counter affidavit that only reassessment under Section 128 is the remedy available to the petitioner, and Section 149 cannot be invoked, is not tenable - the plea of the 2nd respondent that there is no possibility of getting modified an order of assessment under any other relevant provision and that petitioner is trying to overcome limitations stipulated in Section 128 is also rejected. The Assessing Authority has failed to consider the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of import of mobile phones in the BoE, petitioner had not claimed any exemption under Sl.No.263A(ii) of the Exemption Notification which allowed a payment of C.V.D. at 1%. 7. Petitioner contends that this reduced rate was not availed of by it as the 2nd respondent had taken a stand that such exemption is available only when the assessee has not taken credit in respect of the inputs and capitals goods under the CENVAT Credit Rules, 2004 for the manufacture of mobile phones; since the inputs and capital goods in the present case were procured and utilized outside India, the 2nd respondent was of the view that the reduced rate would not be available to importers like the petitioner; and during the above period, the EDI system did not permit availment of the lower rate of tax as per the Exemption Notification. 8. In 2015, the Supreme Court in M/s. SRF Limited vs. Commissioner of Customs 2015 (318) ELT 603 held that where lower rate of Excise Duty has been provided with condition of non-availment of CENVAT Credit, CVD shall also be applicable at lower rate as an importer-trader cannot avail CENVAT Credit in any case, and that the condition attached to the lower rate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer or exporter regarding the matters specified therein, the proper officer has to pass a speaking order on the reassessment within 15 days from the date of reassessment of the Bill of Entry or the shipping bill, as the case may be, and relied on the decision in Usha International Ltd. vs. Assistant Commissioner of Customs, Chennai 2019 (365) E.L.T. 56 (Mad.). The impugned order dt.7.2.2020 13. The 2nd respondent then issued the impugned order dt.07.02.2020 in C.No.S/26/MISC/122-2020-ACC rejecting petitioner s request / application vide letter dt.22.11.2019 for amendment in the Bills of Entry under Section 149 r/w Section 17 of the Customs Act stating as under : (a) that the judgment of the Hon ble Supreme Court in SRF Limited (supra) was delivered on 26.03.2015 and the same was not available at the time of the clearance of the goods pertaining to the Bills of Entry in the present case; (b) an application filed on similar ground by petitioner for re-assessment, pertaining to a different period has not been considered by the 2nd respondent and the appeal against the order of rejection was dismissed by the Ld. Commissioner (Appeals). (c) as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order was passed prior to the decision in ITC Ltd. (2 supra) on 18.9.2019 which laid down the law very clearly; and so could not have been relied on by the 2nd respondent. 17. It is further contended by the petitioner that the impugned order has erroneously rejected the amendment of the BoEs under Section 149 of the Customs Act; that Section 149 provided for amendment of a BoE on the basis of documentary evidence which was in existence at the time when the goods were cleared, deposited or exported; that the only restriction is Section 30 and 41 of the Act which relates to export and import manifest which are not allowed to be amended or where there is a fraudulent intention; that in the present case, the petitioner applied for amendment of the BoEs on the strength of documents which were in existence at the time of clearance of the goods, i.e., the Exemption Notification; that in the impugned order, the 2nd respondent has erroneously held that the amendment has been sought on the basis of the decision of the Supreme Court in SRF Ltd. (1 supra) and that the decision in SRF Ltd. (1 supra) was pronounced on 26.03.2015 which was after the relevant period of the clearance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Commissioner, the petitioner filed Appeal before the CESTAT, which is pending. 23. It is contended that meanwhile the Supreme Court in ITC Ltd. (2 supra) held that refund under Section 27 would only be permissible when the Bill of Entry had been amended or modified under the provisions of the Customs Act, 1962; that in ITC Ltd. (2 supra), it was held that the refund under the provisions of Section 27 of the Customs Act, 1962 would only be available when Bill of Entry has been amended or modified under the provisions of Custom Act, 1962; that in the instant case, the petitioners filed self-assessed Bills of Entry and not disputed the assessment, and the assessment had attained finality; that it is not the case of any error or lapse apparent on account of 2nd respondent s Department; that petitioner was required to seek re-assessment as provided under the provisions of Section 128 of the Customs At, 1962 within such stipulated time and as per the conditions provided therein. 24. According to the 2nd respondent, the petitioner s request for amending the BoE is against the provisions of the Customs Act and was not sustainable. 25. The 2nd respondent further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 149 of Customs Act, 1962, which reads as under : 149. Amendment of documents : Save as otherwise provided in sections 30 and 41 the proper officer may in his discretion authorize any document after it has been presented in the customs house to be amended. Provided that no amendment of a bill of entry or shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse or the export goods have been exported except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. (emphasis supplied) 33. So Sec.149 is an additional remedy available to the petitioner to seek amendment of the BoEs subject to the condition that such amendment is sought on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported as the case may be. 34. In the decision of the Supreme Court in ITC Ltd. (2 supra) while holding that the refund cannot be granted by way of a refund application under Section 27 of the Act until and unless an assessment order is modifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, is always deemed to be the law of the land. It cannot be construed as applicable only after the date of pronouncement of the judgment of the Supreme Court. 41. In M.A. Murthy v. State of Karnataka (2003) 7 SCC 517, the Supreme Court had declared: 8. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath v. State of Punjab AIR 1967 SC 1643 . It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in correctly determining the duty payable, has caused serious prejudice to the importer / petitioner at the first instance. Thereafter, in refusing to amend the Bill of Entry under Section 149 of the Act, to enable the importer / petitioner to claim refund of the excess duty paid, the Assessing Authority / Assistant Commissioner caused further great injustice to petitioner. 49. Also, the Assessing Authority has failed to consider the fact that Section 149 of the Act does not prescribe any time limit for amending the Bill of Entry filed and assessed. The power to amend under Section 149 of the Act is a discretionary power vested with the authority. Since, it is due to incorrect determination of duty by the assessing authority initially, the petitioner is compelled to seek amendment of Bill of Entry under Section 149 of the Act. Thus, the importer / petitioner cannot be penalized for what the authority ought to have done correctly by himself. 50. For the above reasons, we hold that the impugned order dt.07.02.2020 passed in C.No.S/26/MISC/122-2020-ACC by the 2nd respondent cannot be sustained and is violative of Articles 14, 19(1)(g), 265 and 300A of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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